Alphonso Whipper v. Warden (2014)

MEMORANDUM OF DECISION

I. Procedural History

The petitioner was the defendant in a matter pending under docket no.   CR96–246043 in the Judicial District of Waterbury wherein he was represented by Attorneys Richard Marano and Michelle Napoli at all times relevant to the claims presented in this petition.   Following a trial, a jury found him guilty on March 11, 1998, of the crimes of felony murder, in violation of General Statutes § 53a–54c, manslaughter in the first degree, in violation of General Statutes § 53a–55(a)(1), and two counts of robbery in the first degree, in violation of General Statutes § 53a–134.   On May 11, 1998, the trial court sentenced him to a total effective sentence of sixty (60) years incarceration.   The petitioner appealed his convictions, which were affirmed in part and reversed in part in State v. Whipper, 258 Conn. 229, 780 A.2d 53 (2001).¹  The facts that could reasonably have been found by the jury, as related in the Supreme Court decision, and which are relevant to this court's ultimate decision, are as follows:

In February of 1996, the defendant and James Gonzalez resided at the Saint Vincent DePaul homeless shelter in Waterbury.   On the night of February 21, 1996, the defendant, who had no source of income, asked Gonzalez if he wanted to go out the next day and drink beer together.   Gonzalez, who recently had received a Social Security check for $240, agreed.

At approximately 11:30 a.m. on February 22, 1996, after drinking beer in a nearby parking lot, the defendant and Gonzalez walked to the apartment of Luz Maria Santiago, Gonzalez' former mother-in-law, located in the Trinity Apartments at 41 Prospect Street in Waterbury to continue drinking.   To gain entrance to the building, the defendant and Gonzalez waited outside until someone exiting the building opened the door.   After they had entered the building, a video surveillance camera located in the lobby of the building recorded the defendant and Gonzalez while they waited for an elevator to take them to the sixth floor, where Santiago lived.

To gain access to Santiago's apartment, Gonzalez, who had met the defendant two weeks earlier at the homeless shelter, introduced the defendant to Santiago as his friend whom he loved as a brother.   Santiago allowed them inside and they sat down in her living room and watched television.   Gonzalez gave the defendant money to purchase more beer and the defendant left the apartment to make the purchase.   The video surveillance camera in the lobby of the building recorded the defendant's exit and return.

While Gonzalez, Santiago and the defendant were sitting in the living room, Santiago's boyfriend, Hilario Rosado, arrived.   After Rosado greeted Santiago and Gonzalez and introduced himself to the defendant, he went into Santiago's bedroom to watch television.

Suddenly, without provocation, the defendant struck Gonzalez on his forehead with an empty beer bottle, causing Gonzalez to bleed profusely.   Gonzalez, who was physically disabled, pretended to be dead.   When Santiago started to scream, the defendant began to hit her.   Hearing Santiago's screams, Rosado came out of the bedroom.   The defendant struck Rosado in the head with a crystal vase, breaking the vase and rendering Rosado semiconscious.   The defendant next grabbed Rosado around the neck with both of his hands and strangled him to death.   When Santiago attempted to call the police, the defendant took the telephone from her and broke it.   Santiago then opened a window and attempted to yell for help.   The defendant told her that if she did not stop yelling, he would throw her from the window.

The defendant then resumed beating Santiago, breaking two radios and a jar of pickled peppers over her head in an unsuccessful attempt to render her unconscious.   After obtaining a long knife from the kitchen, the defendant went over to Gonzalez and stabbed him in the head, breaking the knife.   The defendant then went back into the kitchen and washed his hands.   Thereafter, he returned to the living room, reached into Rosado's pants pocket and removed his wallet.   The defendant took money from the wallet and then discarded it.   He then reached into Gonzalez' pants pocket, removed his wallet, and, after taking money from the wallet, he tossed the wallet aside.   The defendant picked up his jacket and left the apartment, fleeing down a rear stairwell.   He exited the building via a rear fire door.

After the defendant left, Santiago ran to the fourth-floor apartment of the superintendent of the building, Sharon Murphy.   Murphy's husband called the police.   After police officers arrived, they took Santiago to the Waterbury police headquarters to obtain her statement.   Santiago gave Sergeant James Nardozzi her description of the attack and of the perpetrator.   Nardozzi then brought Santiago back to Murphy's apartment to view the surveillance videotape from the lobby.   Upon seeing the defendant on the surveillance videotape, Santiago identified him as the perpetrator.

That evening, Sergeants Joseph Flaherty and Edward Pekrul, Detective Daniel Coleman, and Officer Edward Mills, all of the Waterbury police department, went to a second floor apartment at 632 Baldwin Street in Waterbury looking for the defendant.   The officers found the defendant hiding in a bedroom closet and took him into custody.   The defendant's hands had fresh wounds and were bloodied.   After searching the defendant, the officers seized $78, the defendant's blue jeans, his shirt, his jacket, a pair of black sweatpants, and a box of cigarettes, all of which had bloodstains on them.   The officers then brought the defendant to the police station, where they took his fingerprints, At the station, officers restrained the defendant because he had become agitated.   In particular, the defendant physically resisted officers when a photographer from the state police forensic laboratory attempted to take photographs of his hands.

On March 22, 1996, Sergeant John Gray of the Waterbury police department prepared a photographic array, which included a photograph of the defendant along with photographs of other men with similar facial characteristics.   Gray presented the array to Santiago, who identified the defendant immediately as the perpetrator of the crimes.

Id., 233–36.

The petitioner commenced the present action by filing a petition for writ of habeas corpus challenging his incarceration on May 14, 2010.   The petitioner subsequently filed a Second Amended Petition on September 4, 2012, alleging seven counts of ineffective assistance against his criminal defense attorneys.²  On January 22, 2013, the respondent filed a return generally denying the allegations in the petition and asserting the special defense of res judicata to counts one, two, four, five and six.   The petitioner filed a reply to the return generally denying the special defense on August 1, 2013.   The matter was tried before the court on September 12, 2013.

Prior to the start of evidence September 12, 2013, the Court notified the parties that it was raising the issue of whether certain counts of the complaint should be dismissed pursuant to its authority under Practice Book § 23–29(3).   Specifically, the court indicated that it was raising the issue of whether certain claims being brought by the petitioner were barred on grounds of res judicata, because they had already been litigated in either a March 11, 1998, post-trial motion for new trial argued before the trial court or in the petitioner's appeal.   The parties were allowed to present their cases, and the court ordered post-trial briefs on the issues it raised, which were timely submitted by the parties.   After reviewing all of the relevant evidence, including the thorough post-trial briefs submitted by the parties, however, the court has determined that legal analysis of the res judicata issues raised by the respondent's special defenses and the court's section 29–29 motion are not necessary, because even if the petitioner's claims were not barred from being litigated and the court accepted them true, he could not establish that there is a reasonable probability that he would have obtained a more favorable verdict from the jury.  Hall v. Commissioner of Correction, 124 Conn.App. 778, 783, 6 A.3d 827 (2010), cert. denied, 299 Conn. 928, 12 A.3d 571 (2011).   The reasoning of the Court's decision is explained below.

II. Law and Discussion

In the present action, the petitioner presented five claims of ineffective assistance against his criminal defense attorneys.  (See, footnote 2.) Counts one and two allege that the defense attorneys were ineffective for failing to move for Porter ³ hearings to challenge the admissibility of certain DNA evidence regarding blood samples found at the crime scene and on the defendant's clothing.   Count three alleges that they were ineffective for failing to prepare and present their expert testimony to counter the same DNA evidence, and count four alleges that they failed to adequately challenge and cross examine the State's expert witnesses who testified on these topics.   Finally, count six alleges that the defense attorneys were ineffective for failing to exclude or object to the admissibility of testimony that a certain palm print identified as the defendant's was found “in blood.”

“[The United States Supreme Court] has recognized that the Sixth Amendment right to counsel exists, and is needed, in order to protect the fundamental right to a fair trial.”  Strickland v. Washington, 466 U.S. 668, 684, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).  “The right to counsel plays a crucial role in the adversarial system embodied in the Sixth Amendment, since access to counsel's skill and knowledge is necessary to accord defendants the ample opportunity to meet the case of the prosecution to which they are entitled.”   (Internal quotation marks omitted.)  Id., 685.  “The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.”  Id., 686.  “A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction ․ has two components.   First, the defendant must show that counsel's performance was deficient.   This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.   Second, the defendant must show that the deficient performance prejudiced the defense.   Id., 687.

The portion of the Strickland test relevant to the Court's decision here is the second prong, the prejudice prong.   Under the prejudice prong of the Strickland test, “[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.”  Id., 691.   “[A]ctual ineffectiveness claims alleging deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice.”  Id., 693.  “Representation is an art, and an act or omission that is unprofessional in one case may be sound or even brilliant in another.”  Id. “It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.”  Id. “The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.   A reasonable probability is a probability sufficient to undermine confidence in the outcome.”  Id., 694.  “An assessment of the likelihood of a result more favorable to the defendant must exclude the possibility of arbitrariness, whimsy, caprice, ‘nullification,’ and the like.”  Id., 695.   The court “must consider the totality of the evidence before the judge or jury.”  Id. “In its analysis, a reviewing court may look to the performance [1st] prong or to the prejudice [2nd] prong, and the petitioner's failure to prove either is fatal to a habeas petition.”  (Internal quotation marks omitted.)  Hall v. Commissioner of Correction, 124 Conn.App. 778, 783, 6 A.3d 827 (2010), cert. denied, 299 Conn. 928, 12 A.3d 571 (2011).

It is important to note at the outset, and pertinent to this court's decision, that the claims presented by the petitioner in counts one through four in this petition challenge only his attorneys' performance related to evidence and testimony about the blood found at the scene of the crime and on the petitioner's clothing and whether they should have kept that evidence out of the trial or, if properly admitted, whether they adequately challenged the evidence with cross examination or their own expert testimony.   Even if these claims were wholly accepted as true for purposes of argument, however, the petitioner has failed to challenge the literal mountain of other direct evidence of his guilt presented at the criminal trial.   In other words, the petitioner has failed to establish the necessary element of prejudice, because he has failed to show that there is a reasonable probability that he would have obtained a more favorable result even if his defense attorneys had been successful in challenging admission of the blood evidence.  Hall v. Commissioner of Correction, supra, 124 Conn.App. 783.

As adequately stated by the trial court in its oral decision on the petitioner's motion for a new trial, “if you excluded the blood evidence in this case, there still remains an overwhelming evidence of guilt ․ There are two eyewitnesses whose identification of the defendant is unfaltering.   It was strong and precise.   The videotape of the defendant entering the building on that day with one of the victims, Mr. Gonzalez.   The fingerprint and palm print evidence that was proffered by the state.   The defendant's conduct after the incident hiding in a closet.   His hands cut.   His resistance to the photographing of his hands.   All of this evidence is strong evidence from which the jury could convict, even if you excluded all of the evidence concerning the blood and any inconsistencies that may or may not exist.” ⁴  This court will also adopt the language from the Supreme Court decision on the petitioner's appeal, which succinctly stated, “[t]he state proffered evidence that included:  (1) the identification of the defendant as the perpetrator by two eyewitnesses, Santiago and Gonzalez;  (2) the surveillance videotape showing the defendant entering the building on the day of the crimes;  (3) the defendant's fingerprints and palm prints on certain items at the crime scene that implicated him as the perpetrator;  (4) the defendant's actions after the incident, from which the jury reasonably could infer guilt ․ and (7) the cuts on the defendant's hands, which corroborated Santiago's testimony that the defendant used glass objects to hit both Gonzalez and Rosado.”  State v. Whipper, supra, 258 Conn. 267.

The Court's conclusion is the same when examining the petitioner's claim in count six that his defense attorneys were ineffective for failing to properly challenge testimony admitted before the jury that the substance on the broken vase in which the petitioner's palm print was found was “blood.”   Once again, however, this allegation does not challenge, nor did the petitioner present any evidence purporting to challenge, the testimony by this same witness that the palm print in question, in whatever substance it may have been found, belonged to the petitioner.   He only challenges the fact that the state's witness was allowed to testify without contest from defense counsel that the substance in which the print was found was “blood.”

To resolve this claim, this court will again adopt language used by the Supreme Court in the petitioner's appeal, which, in deciding a similar issue, albeit in the context of a claim by the petitioner that his due process right to a fair trial has been violated, stated:  “Although the state had not tested the stain found on the vase for the presence of blood, evidence of the stain was not wholly irrelevant.  [The expert fingerprint examiner's] testimony that he had found the defendant's palm print on the broken vase was undisputed.   This fact ․ corroborated Santiago's testimony that she had witnessed the defendant break the vase over [the victim's] head.   Furthermore, there was overwhelming evidence of the [petitioner's ] guilt, rendering such an impropriety harmless.”  State v. Whipper, supra, 258 Conn. 281–82.

This court wholly agrees.   Even if the petitioner could have established that his defense attorneys were ineffective for failing to prevent the state's witness from testifying that his palm print was found “in blood,” he has still failed to establish that there is any reasonable probability that removing such a minor detail from the mountain of direct incriminating evidence against him would have resulted in a more favorable outcome.  Hall v. Commissioner of Correction, supra, 124 Conn.App. 783.

III. Conclusion

Based on the foregoing, the petition for writ of habeas corpus is DENIED.   Judgment shall enter for the RESPONDENT.

Counsel for the petitioner shall prepare and submit a judgment file to the clerk within thirty (30) days.   Notwithstanding, if either the petitioner wishes to appeal this judgment, or any part hereof, all necessary appellate forms and notices shall be filed within the time-frames set forth in applicable Practice Book and statutory sections.

Hon. John M. Newson

FOOTNOTES

FN1. The Supreme Court, Vertefeuille, J., held that:  (1) it was proper for prosecutor to comment at closing argument that DNA test results revealed that victim's blood was on defendant's jeans;  (2) defendant was not entitled to mistrial after partial testimony of state's expert witness was stricken;  (3) defendant's right against double jeopardy was violated by his conviction and sentence for both murder and felony murder for the death of a single victim;  and (4) convictions for murder and first degree manslaughter for the same victim violated defendant's right against double jeopardy.   Affirmed in part, reversed in part, and remanded with direction.  State v. Whipper, 258 Conn. 229, 780 A.2d 53 (2001), overruled by State v. Cruz, 269 Conn. 97, 106, 848 A.2d 445 (2004) (holding that a defendant is not entitled to appellate review of a trial court error induced by the defendant), and overruled by State v. Grant, 286 Conn. 499, 535, 944 A.2d 947 (2008) (holding that a lay person or “ordinary intelligence” may testify that a substance observed by them appeared to be blood)..  FN1. The Supreme Court, Vertefeuille, J., held that:  (1) it was proper for prosecutor to comment at closing argument that DNA test results revealed that victim's blood was on defendant's jeans;  (2) defendant was not entitled to mistrial after partial testimony of state's expert witness was stricken;  (3) defendant's right against double jeopardy was violated by his conviction and sentence for both murder and felony murder for the death of a single victim;  and (4) convictions for murder and first degree manslaughter for the same victim violated defendant's right against double jeopardy.   Affirmed in part, reversed in part, and remanded with direction.  State v. Whipper, 258 Conn. 229, 780 A.2d 53 (2001), overruled by State v. Cruz, 269 Conn. 97, 106, 848 A.2d 445 (2004) (holding that a defendant is not entitled to appellate review of a trial court error induced by the defendant), and overruled by State v. Grant, 286 Conn. 499, 535, 944 A.2d 947 (2008) (holding that a lay person or “ordinary intelligence” may testify that a substance observed by them appeared to be blood).

FN2. Prior to trial, the petitioner withdrew counts 5 and 7, so those claims will not be addressed in this decision..  FN2. Prior to trial, the petitioner withdrew counts 5 and 7, so those claims will not be addressed in this decision.

FN3. State v. Porter, 241 Conn. 57 (1997), 698 A.2d 739, cert. denied, 523 U.S. 1058, 118 S.Ct. 1384, 140 L.Ed.2d 645 (1998) (establishing the standard for the admissibility of scientific evidence)..  FN3. State v. Porter, 241 Conn. 57 (1997), 698 A.2d 739, cert. denied, 523 U.S. 1058, 118 S.Ct. 1384, 140 L.Ed.2d 645 (1998) (establishing the standard for the admissibility of scientific evidence).

FN4. Exhibit 29, Transcript of State v. Whipper, March 11, 1998, p. 49–50..  FN4. Exhibit 29, Transcript of State v. Whipper, March 11, 1998, p. 49–50.

Newson, John M., J.